Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06116/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 March 2016
On 7 April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE KAMARA

Between

MR BOLA SEGUN ADESANYA
(anonymity directioN NOT MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Solomon, counsel instructed by Jein Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge MD Dennis (hereinafter referred to as the FTTJ), promulgated on 16 September 2015, in which he dismissed an appeal against the respondent's decision, dated 14 January 2013, to refuse to vary the appellant's leave to remain and to remove her from the United Kingdom under section 47 of the Immigration, Asylum and Nationality Act 2006.
2. Permission to appeal was granted by First-tier Tribunal Judge Nicholson on 15 February 2016.
Anonymity
3. No direction has been made previously, and I see no reason for one now.
Background
4. The appellant arrived in the United Kingdom with leave to enter as a Highly Skilled Migrant, valid from 17 May 2007 until 17 May 2009. On 14 April 2010, he was granted further leave to remain until 14 April 2013.
5. On 14 March 2013 the appellant applied for indefinite leave to remain in the United Kingdom on the basis of completing 5 years residence in the United Kingdom under Tier1. That application was refused on 14 January 2013 on general grounds, namely paragraph 322(1A) and (2) of the Immigration Rules. In essence, the Secretary of State considered that false documents or information was submitted with both the previous application for further leave to remain as well as the current application. The reason for this conclusion was that while the appellant had relied upon evidence of self-employed earnings in both this and the previous application, following enquiries with HMRC it had become apparent that the appellant had submitted no self-assessment tax return or declared any income in relation to self-employed earnings from the tax years 2008-2009 until 2012-2013, inclusive.
6. In his grounds of appeal, the appellant rejected the allegations, without addressing them in a substantial way.
The hearing before the FTTJ
7. The FTTJ heard the appeal in the absence of a representative of the Secretary of State. Having heard the appellant's oral evidence and considered the documentary evidence produced for the appeal, the FTTJ rejected the appellant's claim that he had not sought to deceive the Secretary of State. The appeal was therefore dismissed under the Rules. There was no human rights claim before the FTTJ.
The grounds of appeal
8. In essence, the grounds argued; (1), that there was a delay of over 4 months between the hearing and the date the decision and reasons and that this had resulted in procedural unfairness; (2) that the FTTJ materially misdirected himself as to the burden of proof of proving that false representations were made; (3) that the FTTJ failed to decide a material matter, that of whether the appellant's misrepresentation was dishonest; (4) the FTTJ made reference to the appellant's employed earnings, which was never in dispute; (5) that the FTTJ erred in concluding that it was implausible that the appellant, as a trained accountant, would employ a bookkeeper to deal with his financial affairs; (6) that an immaterial consideration was taken account of, that of the appellant's declarations to HMRC; (7) the FTTJ failed to adequately explain the legal basis for concluding that the appellant's failure to declare self-employed income precluded its recognition for any other purpose and (8) the FTTJ had erroneously dismissed the appeal on the basis of lack of documentation for an award of points, which was not a matter which was before him.
9. FTTJ Nicholson granted permission, stating that it was arguable that the decision was unsafe in relation to ground 1 alone. While permission was not refused on any ground, of the remaining grounds, FTTJ Nicholson commented, "some have little if any merit."
10. In her response of 22 February 2016, the respondent opposed the appeal, stating that the FTTJ directed himself appropriately. It was said that the grounds failed to identify, with valid reasons, how the delay in the promulgation of the decision materially affected the outcome. In addition, it was argued that the FTTJ had provided a "plethora" of reasons why the appellant was not believed.
The hearing
11. At the hearing before me, Mr Bramble indicated that he would not be able to provide any assistance as to what transpired at the hearing before the FTTJ because the respondent was not represented. He further indicated that in his view there was merit in the ground concerning delay and that in his view, the FTTJ had not addressed the evidence the appellant had provided to the respondent with his applications for further leave and had just focused on the tax return issue. There was potentially an appealable error.
12. Mr Solomon argued that the appellant's credibility featured large in the appeal and that the case did not turn on the documentary evidence before the FTTJ. He submitted and relied on the determination in Arusha and Demushi (deprivation of citizenship - delay) [2012] UKUT 80 (IAC), with specific reference to paragraph 34, where a rule of thumb of 3 months was referred to where credibility was involved. The documentary evidence before the FTTJ was said to be very limited, in that there had been no respondent's bundle at all and very little in the appellant's bundle. Mr Solomon had been counsel before the FTTJ and he had made submissions in the same vein as in the grounds of appeal, however the submissions were not recorded in the decision. One key submission was that the specified documents provided in the previous applications were not found to be invalid or false
Decision on error of law
13. The FTTJ made a series of negative credibility findings against the appellant. At [25] he describes him as deceitful and also that his credibility was compromised by a number of aspects of his oral evidence. Furthermore, I accept that the submissions summarised in ground 1 of the permission application were made to the FTTJ, however the decision does not either set them out or engage with them. Those submissions go to the core of the appellant's case.

14. In view of the delay of 4 and half months in the particular circumstances of this case, where credibility was in issue and fairly complex arguments were made on the appellant's behalf, I find that the nexus between the delay and the safety of the decision has been established. I am not satisfied that the decision of the FTTJ can be considered safe.

Conclusions

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision to be re-made.

Directions

This appeal is remitted to be heard de novo, by any First-tier Tribunal Judge (except FTTJ Dennis).
The appeal is to be listed for a hearing at Taylor House..
Time estimate is 2 hours.

Signed Date: 19 March 2016
T Kamara
Deputy Judge of the Upper Tribunal